Tuesday, February 27, 2007

Two pieces of good news from Iraq in today's papers. First, from my local Tacoma News Tribune, a report that a local congressman, Norm Dicks (D-WA) has returned from a trip to Iraq more optimistic about the chances for success. According to the article, Dicks, a long-time critic of President Bush and the war in Iraq and who voted for the recent non-binding resolution criticising the surge, "'said the troop buildup led by Gen. David Petraeus, the new U.S. commander in Iraq, could work – if Iraqis believe in it and participate fully.'" "'I think this plan has possibilities, if the Iraqis will get their troops in the field and do the embedding with the U.S. forces, and if they do the political reconciliation' necessary for long-term stability."

The draft law approved by the cabinet allows the central government to distribute oil revenues to the provinces or regions based on population, which could lessen the economic concerns of the rebellious Sunni Arabs, who fear being cut out of Iraq’s vast potential oil wealth by the dominant Shiites and Kurds. Most of Iraq’s crude oil reserves lie in the Shiite south and Kurdish north.

The law also grants regional oil companies or governments the power to sign contracts with foreign companies for exploration and development of fields, opening the door for investment by foreign companies in a country whose oil reserves rank among the world’s three largest.

Iraqi officials say dozens of major foreign companies, including ones based in the United States, Russia and China, have expressed strong interest in developing fields or have done some work with the Iraqi industry. The national oil law would allow regions to enter into production-sharing agreements with foreign companies, which some Iraqis say could lead to foreigners reaping too much of the country’s oil wealth.

Iraqi officials say all such contracts will be subjected to a fair bidding process, but American inspectors have reported that the upper echelons of the government, including the senior ranks of the Oil Ministry, are rife with corruption. There are also fears among non-Americans that American companies could be favored.

But oil industry analysts in the United States say it is unclear whether companies will rush to sign contracts because the law is vague about what legal protections investors would be given....

The oil law’s drafters reached agreement on the principle of revenue sharing fairly early in the process. Much more contentious was the issue of signing oil contracts. The Kurds, who have enjoyed de facto independence in the mountainous north since the end of the Persian Gulf war in 1991, argued strongly for regional governments or companies to have full power in signing contracts with foreign companies to develop oil fields. Sunni Arab leaders insisted on keeping this power in the hands of the Oil Ministry. The Shiites fell somewhere in the middle.

The draft law has a compromise: regions can enter into contracts, but a powerful new central body, the Federal Oil and Gas Council, would have the power to prevent the contracts from going forward if they do not meet certain prescribed standards, Mr. Salih said. A panel of oil experts from inside and outside Iraq would advise the federal council on the contracts.

The draft law also re-establishes the state-run Iraq National Oil Company, which was founded in 1964 to oversee oil production but was shut down by Mr. Hussein in 1987. The company would operate separately from the Oil Ministry and use a business model. In addition, any region that can produce at least 150,000 barrels of oil a day can create its own operating company.

This is a hugely important deal. One of the most critical sticking points between the three main players (Kurds, Sunnis, and Shiites) has been the distribution of oil wealth. The uncertainty has been a catalyst for the ethnic violence/insurgency, as the Sunnis have feared being shut out of the country's oil wealth; if this deal can reassure Sunnis that they will benefit from a united and stable Iraq it may be possible for the government to get the violence under control. While there is a lot more work to be done (for an excellent analysis, see this post over at Westhawk), but this deal is, at the least, a little bit of good news.

Since my job at the Pentagon is to follow and report these kinds of things- there are several trends we are seeing lately:

1) Definite and measurable decrease in number of sectarian killings within Baghdad: From nearly 1,400 to 680 in the last two months.

2) We are killing and capturing increasing numbers of Sunni insurgents and Al Qaeda fighters. And when I say "we"- I mean Multi-National Forces Iraq as well as the Iraqi Army, the Iraqi Police Commando, and the newer "National Guard"/Territorial Forces in Anbar.

3) The recent bombings in ANBAR demonstrate red on red kinetic operations. Something which has been rare until the last few months. More and more Sunni tribes are pledging fealty to the Iraqi government and the Coalition and turning their back on the insurgents/AQI. This has caused them to be targeted.

We have seen the enemy bomb police recruitment drives, and now mosques of "apostate" Imams and Sheikhs who have sided with the Americans. This has happened twice in the last week. While the mainstream media considers this more proof of failure- it is actually a sign of the precarious position the terrorists are in. They need the Sunni population to protect them and shelter them. If they are now butchering them like everyone else- this could be a turning point in the relationship. This is crucial to watch. We need to protect the tribal leaders who have come over to us- and AQI knows that it is a death sentence for them if they can't stop it.

Key lawmakers, backed by party leaders, are drafting legislation that would effectively revoke the broad authority granted to the president in the days Saddam Hussein was in power, and leave US troops with a limited mission as they prepare to withdraw.

Officials said Thursday the precise wording of the measure remains unsettled. One version would restrict American troops in Iraq to fighting al-Qaida, training Iraqi army and police forces, maintaining Iraq's territorial integrity and otherwise proceeding with the withdrawal of combat forces.

Such a plan is more appealing to senators uncomfortable with the other option being explored by opponents of the war: the "slow bleed" plan being developed by Rep. John Murtha that is intended to limit the ability to deploy soldiers into Iraq by placing strict requirements on training and funding.

It probably doesn't matter which route Congress takes to try to end the Iraq war, as both paths are very likely unconstitutional. While it's not clear, Murtha's plan very likely violates the constitutional authority of the president as commander-in-chief as the plan seems to go beyond Congress' role of making rules of the government and regulation of the armed forces. The Senate's plan will likely be vetoed, but it wouldn't have to be. Congress has long ago ceded any responsibility for the control and deployment of the US armed forces. While the president did ask Congress for authorization, the administration also made it clear that it did not have to do, as all administrations have done since the passage of the War Powers Resolution. As I have argued in many posts, Congress' role in such matters is limited to funding the military and declaring war. If Congress really wants to end the US military involvement in Iraq, it will have to cut off funding for the troops.

Tuesday, February 20, 2007

Yesterday, Republican senator and presidential candidate John McCain (AZ) blasted former Secretary of Defense Donald Rumsfeld, stating that "Donald Rumsfeld will go down in history as one of the worst secretaries of defense in history." McCain's opinion is largely based on Rumsfeld's refusal to deploy sufficient troops into Iraq to stabilize the country and deal with the insurgencies, and, according to McCain, "we are paying a very heavy price for the mismanagement -- that's the kindest work I can give you -- of Donald Rumsfeld of this war."

I have bloggedbefore about Rumsfeld, arguing that regardless of culpability (although there is strong evidence that he did ignore many arguments for increasing the US deployment in Iraq) , he, as SecDef, deserves the blame for the debacle that Iraq has become. On that charge, Rumsfeld is guilty as charged by McCain.

But does that taint his entire tenure as SecDef? In fact, Rumsfeld has been a very important and successful secretary, albeit often out of the public eye. Rumsfeld has done an admirable job of modernizing the US Army and preparing it for future warfare. Rumsfeld has been aggressive in cutting useless weapons projects (e.g. the Crusader), despite congressional and service branch opposition. The war in Afghanistan represents a major triumph, as Rumsfeld combined special operations forces with precision-guided munitions to win quickly. The US military will, as a direct result of Rumsfeld's leadership remain poised to maintain its full-spectrum dominance for many years to come.

Ironically, it is these very successes that are perhaps responsible for his failures in Iraq. While we do not know, it is most likely Rumsfeld's devotion to military transformation that led him to overlook the advice of so many generals and advisers pleading for more troops (although, to be fair, those same generals and advisers resist, complain, and whine when their precious weapons systems are cancelled or the military is transformed away from what they're used to).

So, how do we judge his tenure? It's probably too early, as we do not yet know how disastrous Iraq will turn out to be. But my gut says Rumsfeld did more good for this country than bad. Transforming the military was a critical task, and one that few SecDefs could have done. It's just that the bad is more visible. Fairly or not, that will likely define Rumsfeld's legacy.

Monday, February 19, 2007

Senior leaders of Al Qaeda operating from Pakistan have re-established significant control over their once-battered worldwide terror network and over the past year have set up a band of training camps in the tribal regions near the Afghan border, according to American intelligence and counterterrorism officials.

American officials said there was mounting evidence that Osama bin Laden and his deputy, Ayman al-Zawahri, had been steadily building an operations hub in the mountainous Pakistani tribal area of North Waziristan. Until recently, the Bush administration had described Mr. bin Laden and Mr. Zawahri as detached from their followers and cut off from operational control of Al Qaeda....

Officials said the training camps had yet to reach the size and level of sophistication of the Qaeda camps established in Afghanistan under Taliban rule. But groups of 10 to 20 men are being trained at the camps, the officials said, and the Qaeda infrastructure in the region is gradually becoming more mature.

The main problem is Pakistan's unwillingness to challege al Qaeda in North Waziristan, an area in which Pakistan struck deals with local tribal elders to pull Pakistani forces out of the area in exchange for the halting of attacks across the border into Afghanistan. However, the withdrawal of government forces has allowed al Qaeda to grow in strength and influence and set up new centers of operation.

While the news of a resurgent and reorganized al Qaeda is most definitely bad, there is a sliver of a silver lining. One of the major successes of the invasion of Afghanistan was the destruction of the al Qaeda bureaucratic structure than enabled it to carry out extremely sophisticated attacks, such as the simultaneous bombings of US embassies in Kenya and Tanzania, not to mention 9/11. With the loss of Afghanistan as a client state, al Qaeda decentralized, making it much more difficult to locate and strike at the leadership. However, that decentralization came at a price, and al Qaeda has not been able to carry out major attacks against significant targets. Bombings of buses, hotels, and discos, while deadly and serious do not advance al Qaeda's goals as do major operations like those carried out in the 1990s. But those kind of operations are not possible with a decentralized leadership and organizational structure.

If al Qaeda is regrouping and trying to rebuild a formal operational structure, it will certainly try to escalate its attacks and refocus its target set on more lucrative and high-profile targets. However, this move by al Qaeda is a risky one, and may signal the group's frustration with its inability to carry out major attacks since the loss of Afghanistan. Returning to the pre-9/11 structure of training camps and command bases makes al Qaeda a more visible target for counter terror efforts. More sophisticated attacks leave behind a more visible footprint of communications, money trails, training camps, and centralized leadership. The US will need to pressure Pakistan to move against these camps, or force President Pervez Musharraf to allow US special forces to do the dirty work for him.

Tuesday, February 13, 2007

The US and North Korea have reached, for now at least, a deal concerning North Korea's nuclear program. North Korea has agreed to shut down its main nuclear reactor, disarm any existing nuclear weapons, and submit its remaining nuclear facilities to international inspections. In exchange, the US and the international community will provide around $400 million in food, fuel, and development aid, and the US will begin normalizing relations with North Korea, including discussions to remove North Korea from the list of states involved with sponsoring terrorism and lifting trade and financial sanctions. There are, of course, concerns over the verifiability of the deal, as the Times notes, "North Korea has sidestepped previous agreements, and is thought to have many mountainside tunnels where it can hide projects."

The deal, as it stands, is a pretty good one. There were few other palatable options, and using military force was nearly inconceivable. The deal, if it holds, gets the US and the international community pretty much everything desired. The US is bolstered by the presence of the Chinese, South Koreans, Japanese, and Russians, all of whom were involved in the negotiations. Specifically:

The deal places new requirements on both North Korea and the United States within the 60-day period. Besides closing and sealing Yongbyon , North Korea will "discuss" with the other nations a list of all its nuclear programs, including plutonium extracted from used fuel rods. International inspectors are to verify the process.

The accord sets a 60-day deadline for North Korea to accomplish the first steps toward disarmament, and leaves until an undefined moment — and to another negotiation — the actual removal of North Korea’s nuclear weapons and the fuel manufactured to produce them.

Under the agreement, the first part of the aid -- 50,000 tons of fuel oil, or an equivalent value of economic or humanitarian aid -- would be provided by South Korea, Russia, China and the United States; in the case of the United States , that would require congressional approval, which is likely to be difficult to get....

For disabling the reactor and declaring all nuclear programs, the North will eventually receive another 950,000 tons in aid. Further negotiations are to begin on March 19 in Beijing.

The ultimate goal is the complete denuclearization of North Korea, and the next round of talks is expected to begin to wade into the thicket of disputes over how to carry this out.

The steps outlined require the North to provide a complete list of its nuclear programs, including an inventory of its plutonium stockpile. It must also disable all nuclear facilities, including "graphite-moderated reactors and reprocessing facilities."

Politically, however, there are two main problems with this deal. First, as former UN Ambassador John Bolton noted, the deal "sends exactly the wrong signal to would-be proliferators around the world: 'If we hold out long enough, wear down the State Department negotiators, eventually you get rewarded,' in this case with massive shipments of heavy fuel oil for doing only partially what needs to be done." As I've noted in a previous post, this is a perennial problem in international politics: states with interests in a particular outcome can be "blackmailed." The US and others want North Korea not to proliferate, so if North Korea can proliferate it can then bargain away its nuclear capability for rewards. Of course, this can work both ways -- perhaps Iran will look to this deal and see an opportunity to wheel and deal and get aid and assistance that it needs. On the other hand, maybe other problematic states will see proliferation as a useful and even necessary step towards international acceptance and payouts. Care must be taken so that the US and its allies not be painted as easy marks for nuclear blackmail. In this case, the length and history of the negotiations and the very nature of the bilateral relationship makes it easier for the US to claim that this is a unique deal and not a model for emulation (although if Iran eventually gets a similar deal, the claim becomes more difficult to sustain).

The other potential problem is more theoretical. The deal represents a clear triumph of a realist foreign policy that preferences raw national interest, defined narrowly, against more liberal considerations like human rights or values. Providing North Korea with food and fuel aid extends a lifeline to perhaps the worst regime the world has even known. There are no guarantees that the aid will improve the lives of North Korea's long-suffering people. As the Times report of the deal notes, the debate within the Bush Administration, and even before 2000, has been whether to deal with North Korea or to "squeeze" the country in hopes that it will collapse. That debate has been resolved now.

Should the US be making deals to prop up such a reprehensible regime? Many of those critical of the invasion of Iraq desired for a more realist foreign policy, noting that much of the case for invading Iraq came from neo-conservatives who saw the opportunity to topple a dictator, improve human rights, and introduce democracy into a part of the world that has known only authoritarian rule. Here's the result of that backlash: A deal that helps North Korea maintain its iron grip on its people and continue to starve them into submission and subservience.

Foreign policy must always be judged in the context of the situation: risk, alternatives, and potential outcomes must all be considered. Consistency is nearly impossible, as every situation, no matter how similar, is different from another, posing its own set of parameters and challenges. The US lacked any good options for dealing with North Korea. An invasion would likely wreak horrific damage on South Korea, and perhaps even Japan and China. Sanctions might have toppled the regime in the long run (although evidence of the efficacy of sanctions is very rare) but in the short run were merely further impoverishing the people of North Korea. Furthermore a nuclear North Korea threatened to undermine regional stability in a serious way, by encouraging both Japan and South Korea to consider proliferation themselves. In short, North Korea presents a sufficiently serious and imminent challenge to American and international security that it could only be dealt with under a "realist" framework.

I do not like the idea of the deal, but on balance it is probably the best outcome at the moment. However, in keeping with my earlier arguments about the need for multilateralism to be backed by force, if North Korea fails to keep to its obligations, the full weight and wrath of the international community must fall on North Korea. The US must make it clear to all involved parties, and especially Russia and China, that total isolation and complete economic sanctions must follow if North Korea obstructs the deal in any meaningful way and to be willing to threaten military action if necessary. The US was willing to go the multilateral route of a negotiated settlement, but the multilateral community must be willing to back the US if the settlement fails.

Friday, February 09, 2007

Fatah and Hamas have agreed to form a government that shares power between their rival factions in an attempt to end the fighting between the two groups that has recently engulfed Gaza. The new government will divide cabinet seats between Hamas and Fatah (currently, Hamas has all the seats by virtue of its electoral victory last year), and Hamas will keep the prime ministry, currently held by Ismail Haniyeh. Specifically, Hamas agreed to cede control of two important ministries, interior and foreign, the cabinet positions of which will be filled by independent politicians.

This agreement is nothing more than a bandage, temporarily stanching the bloodshed but doing nothing to resolve the long-term, fundamental problems in the Palestinian territories. First, as the Washington Post notes:

It remained unclear whether the new government will meet conditions laid down by Israel and international donors to fully restore funding to the Palestinian Authority that they cut off after Hamas's victory in January 2006 parliamentary elections.

The agreement does not explicitly recognize Israel's right to exist, a key international demand. Hamas officials said their movement would not do so.

So, the deal does little to end the political and finanical isolation imposed on the Palestinians as a result of Hamas' refusal to accept the negotiated framework that has been advancing. To wit, follwing the signing of the deal, the spokesman for Hamas, Ghazi Hamad said “I wonder why the issue of recognizing Israel is the key to everything? We are interested to end the siege but not at any cost.”

More importantly, the deal does nothing to resolve the most important problem which is the inability of any Palestinian government to maintain a monopoly of violence. Both Hamas and Fatah will hold on to their militias. Since the two parties still fundamentally differ on how to deal with Israel as well as on domestic issues, sooner or later the political comity of the meeting in Mecca will dissolve and each side will have the option to fall back on violence to try to get its way. Until this problem is solved and armed force is concentrated in the hands of the government, rather than the political parties, neither this deal nor any other will bring stability to the Palestinian territories or peace to the Palestinian people.

Tuesday, February 06, 2007

Sean Penn is currently in Tacoma as are hundreds of protesters, all here to offer their support for First Lieutenant EhrenWatada who goes on trial today for his refusal to deploy to Iraq with his unit. Watada is charged with missing a movement and conduct unbecoming an officer for his refusal and his public denunciations of President Bush and the war. While a number of enlisted men have refused deployment, Watada is the first officer to do so. Watada will claim that he has the right to refuse an unjust order and that the war is unjust because no weapons of mass destruction -- the primary justification for the invasion -- were ever found. This claim is exceedingly unlikely to hold up.

But it was not Watada's primary defense. His main reason for refusing deployment, which was thrown out of court by the military judge, was the the war is itself illegal. On what grounds could the war be considered illegal? For the war to be illegal, it must violate either national or international law.

The Iraq War is, plain and simple, legal under US law. Of this, there is no dispute. Congress authorized the war, but even if Congress had not done so there war would still have been legal. Congress has made no legislative effort to end the war or even to constrain the president's ability to prosecute it. Thus, the war is legal under US law (except as argued below).

What about international law? Watada's claim, now barred from being presented in court, was that the war violated US commitments under the UN Charter. The UN Charter is a treaty that was formally ratified by the US Senate; under the Supremacy Clause, ratified treaties are part of "the supreme law of the land"; thus, the UN Charter is, along with its restrictions on the use of force, supreme law of the United States and a war launched in violation of the UN Charter is illegal under both international and national law. Under the UN Charter, the use of force against a state is only permissible under two conditions: Authorization by the UN (which has only occurred twice: the Korean War and the first Gulf War), or in self-defense from an imminent attack (as in the case of Israel and the Six-Day War). Since there was no authorization from the UN, and since Iraq did not pose an imminent threat to the US, the invasion is, according to this logic, illegal.

Unfortunately, this argument fails to hold water on several grounds. First, while many analysts are skeptical, the Bush Doctrine conflates the concepts of preventive war with preemptive war, making it possible to argue that the invasion of Iraq was in fact preemptive. Whether or not one agrees with this claim, there is no objective measure of what constitutes an imminent threat. Thus, the argument fails from being too vague.

Second, the legal status of the UN is questionable in and of itself. Law can only be meaningful and enforceable when and where it enforced fairly and consistently, and the UN is far from meeting this standard. States are free to routinely violate their commitments and obligations to the UN with impunity; genocide occurs with little response; and the UN is incapable of implementing its own rules and laws. Law cannot be selective; if the UN fails to uphold its laws on non-proliferation or genocide it cannot expect adhere to other laws, such as those governing the use of force.

Most importantly, however, is the argument that rests on the Supremacy Clause. In order for a ratified treaty to become "the supreme law of the land" it must either be self-executing or must be passed into law by both houses of Congress, and not just ratified by the Senate. A self-executing treaty is one that is clearly intended to replace or supersede existing legislation and thus would need no further implementation by Congress. According to the American Society of International Law:

Provisions in treaties and other international agreements are given effect as law in domestic courts of the United States only if they are "self-executing" or if they have been implemented by an act (such as an act of Congress) having the effect of federal law. Courts in this country have been reluctant to find such provisions self-executing, but on several occasions they have found them so--sometimes simply by giving direct effect to the provisions without expressly saying that they are self-executing. There are varying formulations as to what tends to make a treaty provision self-executing or non-self-executing, but within constitutional constraints (such as the requirement that appropriations of money originate in the House of Representatives) the primary consideration is the intent--or lack thereof--that the provision become effective as judicially-enforceable domestic law without implementing legislation. For the most part, the more specific the provision is and the more it reads like an act of Congress, the more likely it is to be treated as self-executing. A provision in an international agreement may be self-executing in U. S. law even though it would not be so in the law of the other party or parties to the agreement. Moreover, some provisions in an agreement might be self-executing while others in the same agreement are not.

In order for Watada's claim to hold up, the UN Charter must be seen as self-executing, as there has not been any legislation transferring the war powers of either the president or Congress to the UN. The relevant section of the UN Charter is Chapter VII, the most critical articles of which are:

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 40

In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

Article 41

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

That language certainly does not approach the level of specificity present in congressional legislation to make it self-executing. US courts have repeatedly held that the Charter is in fact not self-executing. Thus, absent legislation authorizing its provisions, the Charter cannot be held to supersede existing US constitutional law or legislation and therefore its rules concerning the use of force do not bind the US government.

Watada will go to jail, likely for four years. US military officers cannot decide for themselves when and where they will serve. I am disappointed that the court will not hear the real "meat" of Watada's argument, as it is both interesting and important. But that does not change the fact that Iraq War may have been ill-planned, but is not illegal.

UPDATE (2/24): The Army has refiled charges against Watada, who stands accused of missing deployment and four counts of conduct unbecoming of an officer for his public speeches. The Army has also added two new conduct-unbecoming charges that were dropped as a result of an agreement in the first trial. Watada's lawyer will file a motion to dismiss based on double jeopardy protections.

But stopping the fighting might not be the best idea. I've written many times before about the problems that occur when the ruling political power does not enjoy a monopoly of violence within its borders. Hezbollah drags Lebanon into a unwanted war with Israel that wreaks massive devastation on the civilian population; Sunni and Shiite militias in Iraq run around undermining the power and legitimacy of the central government. In Palestine, neither faction can advance its platform as the other has sufficient force to interfere.

Several years ago, Edward Luttwak wrote an article in Foreign Affairs entitled "Give War a Chance," in which he argued:

An unpleasant truth often overlooked is that although war is a great evil, it does have a great virtue: it can resolve political conflicts and lead to peace. This can happen when all belligerents become exhausted or when one wins decisively. Either way the key is that the fighting must continue until a resolution is reached. War brings peace only after passing a culminating phase of violence. Hopes of military success must fade for accommodation to become more attractive than further combat.

The problem in Palestine is that each side has enough force, power, and support to believe that it should not have to submit to the will of the other. Cease-fires, truces, and negotiations only pause the conflict, allowing each side to regroup and rearm for the next outbreak of violence. It very well may be best for Hamas and Fatah to fight it out to the bitter end, enabling one side or the other to establish political control over the Palestinian territories. Permitting a civil war to rage may be of cold comfort to the Palestinian people who will suffer, but perhaps the short-term pain will produce a long-term political solution that has eluded them to date.